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SENTENCING PRINCIPLES
By Geraldine Mackenzie and Nigel Stobbs

FOREWORD
January 2010.

The Hon. Michael Kirby AC CMG

SENTENCING PRINCIPLES

BY GERALDINE MACKENZIE
AND NIGEL STOBBS
FOREWORD
The Hon. Michael Kirby AC CMG

This book accepts the daunting task of collecting and describing the
Australian law on sentencing. To undertake that task, the authors have
reviewed the entire landscape. They have assembled the main statutory
provisions that govern general and particular sentencing principles; the
procedures that are to be followed in imposing sentences; some special
rules observed, as in the sentencing of juveniles, indigenous offenders
and others; the range of non-custodial sentences and punishments for
specific offences; the availability of custodial and mandatory sentences;
and the rules that govern appeals against sentence. Interspersed with
the many statutory provisions that now govern judges and magistrates in
the imposition of sentences are the judicial elaborations of the legislation
and the exposition by judges of the common law requirements for this
most important public function.

The function is important because it involves the deployment of the

power of the community over individual liberty, and the reputation,

Justice of the High Court of Australia (1996-2009); President of the Court of Appeal of New South
Wales ( 1984-96); Chairman of the Australian Law Reform Commission (1975-1984).

activities and monies of the convicted offender. Yet sentencing also now
speaks to the victims of offences, their families, and friends; the
community generally through the public media; the legal and judicial
professions; and the writers of fact and fiction for whom judicial
punishment constitutes a daily contribution of the courts to the standards
that society demands of its members.

Readers of this book will be grateful to the authors for the taxonomies
they have adopted; the principles they have extracted from the
wilderness of instances; the light they have shone on the explosion of
statutory law; and the lessons they have drawn in explaining (and
sometimes criticising) judicial utterances (including some of my own).
Because, as the authors point out, ninety percent of sentencing in
Australia is performed in State and Territory courts, it is natural that
many of the earlier respected texts on this subject have addressed the
law as it applies in particular sub-national jurisdictions. One of the main
contributions of this book is that it offers a national perspective. This will
be useful to busy judges and legal practitioners and to law teachers and
students, now increasingly engaged in this hitherto neglected corner of
the law.

It is exactly thirty years since I helped put the finishing touches on the
innovative report of the Australian Law Reform Commission, Sentencing
of Federal Offenders1.
practising

lawyers,

That report set out to engage the judiciary,

academics,

social

scientists

and

prisoner

representatives in a way that had never earlier been tried in Australia.

Until then, sentencing had not attracted much academic attention. In
part, this was because the High Court of Australia had normally set its
1

ALRC 15 (interim), 1980.

face against becoming involved in such issues. But, in part, it was also
because sentencing was generally regarded as beneath the dignity of
the nations appellate judges.

The absence, to that time, of much

statutory law on sentencing and the predominance, in the task, of judicial

discretion (that was largely immune from review), cut most sentencing
off from detailed analysis.

In my four year law course at the University of Sydney, not a single hour
was devoted to examination of sentencing. Neither in criminal law; nor
in procedure; nor in jurisprudence.

It was as if the whole great

enterprise of criminal law, which was the centrepiece of law for most
citizens, ended up in a whimper once the legal business of the trial was
over.

Yet, from the point of view of those on the receiving end,

punishment was often the gist of the process. Still at that time, it was
widely regarded as having no legal significance at all.

Some of the recommendations made in the Australian Law Reform

Commissions report were translated into law2.

Many were not.

However, as the authors of this book acknowledge, the report was to

prove influential in bringing sentencing out of the shadows. Two further
reports were written by the Australian Law Reform Commission3. Other
reports were produced by State and Territory law reform and expert
bodies. These are described here. They evidenced, and accompanied,
political, professional, academic and community debate about the
purposes of sentencing; what worked and what did not; and what should
be done to achieve a fairer and more effective system.

2
3

Crimes Legislation Amendment Act (No.2) 1969 (Cth); Crimes Amendment Act 1982 (Cth).
Sentencing (ALRC 44, 1988) and Same Crime, Same Time (ALRC 103, April 2006).

When, in 1980, I reported to the Australian legal convention on our first

national report on sentencing4, I quoted Lord Kilbrandons assessment
that sentencing was the most painful and unrewarding of judicial
tasks5.

A lot of water has flown under the bridge in the intervening

decades. There have been many more debates. The High Court of
Australia has become more closely involved in the subject. Legislatures
have enacted many laws.

The result is that sentencing may remain

painful for judicial officers. But the injection of principles and the active
debates over their application has meant that the task is now less
unrewarding. Unstructured and unreviewable discretion, even when
performed by judges, can be a kind of tyranny. The search over the past
thirty years in Australia has been for ways to enhance the role of
principle

and

to

reduce

the

unreviewable

discretions

whilst

acknowledging that, in the end, a leap to judgment is normally required

on the part of those entrusted with sentencing.

All of these points are well made in this book. It reviews the debates
that arose in the High Court of Australia concerning the so-called
instinctive synthesis theory of sentencing and the role of a competing
principled approach to the task6. Unusually these judicial interchanges
elicited an interesting commentary from the standpoint of neurologists
concerned the intriguing question of how judicial (or other) minds
actually operate when evaluating multiple and complex considerations in
approaching a convincing and satisfying conclusion7. Without digging
too deeply into the judicial subconscious, the book marshals the debates
4

M.D. Kirby, Sentencing Reform: Help in the Most Painful and Unrewarding of Judicial Tasks
(1980) 54 Australian Law Journal 732.
5
Lord Kilbrandon, Children in Trouble (1966) 6 Brit Journal Crim 112 at 122.
6
Markarian v The Queen (2005) 228 CLR 357.
7
H. Bennett and G. Broe, Judicial Neurobiology, Markarian Synthesis and Emotion: How Can the
Human Brain Make Sentencing Decisions? (2007) 31 Criminal Law Journal 75.

that have unfolded in Australia over sentencing in the thirty years since
the Law Reform Commission published its first report suggesting
legislative prescription of general principles and the judicial injection of
more transparent approach to sentencing.

It is timely to collect and

evaluate these developments.

Not all of the debates over sentencing have been rational. Many of them
are described here to explain what has occurred to bring us to the
present state of the law:
The growth in the number and importance of federal courts and
crimes.
The increased stridency of law-and-order campaigns involving
electoral competition between politicians for perceptions of greater
harshness.
The introduction of guideline sentences and some of the problems
they have produced.
The initiation of victim impact statements.
The recognition of the special challenges presented by indigenous
prisoners.
The great expansion in crimes involving the abuse against
children.
The theoretical and practical problems arising from the provision of
discounts for guilty pleas.
The

mitigation

of

sentences

for

considerations

of

public

opprobrium in the media.

The suggested moderation of punishment for cases involving
official entrapment.

Carefully, the authors tackle these and other issues as they seek to
explain how, during the past three decades, Australia has joined the
countries of the world with the highest levels of per capita imprisonment.
Has this change made Australian society safer?

Has it stilled the

punitive instinct to which some politicians and media constantly call us?
The authors pose these questions. The answers must often be given by
those who hold the responsibility of imposing sentences on their fellow
citizens.

Ultimately, sentencing is about values. This book attempts to collect

many of the values that are in play. A human element in sentencing is
inescapable. But it needs to be tamed, lest personal prejudices and
individual reactions play too great a part. Especially because of the
recent enlargement of the punitive element of sentencing in Australia,
revealed in this book, it is important that all those involved should accept
the responsibility of ensuring that what they do is at once lawful and
principled, performed by just and rational procedures.

For their

contribution to these objectives of our law, when convincing outcomes

are at a high premium, the authors deserve our thanks and praise. This
book is careful, restrained, temperate and wise.
sentencing itself should always strive to be.

Sydney
1 January 2010.

Which is what